Tamaka v Police

[2012] NZHC 2302

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-81 [2012] NZHC 2302

HUIA TAMAKA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 September 2012

Counsel:         C Milnes for the Appellant

S McClean for the Respondent

Judgment:      7 September 2012

JUDGMENT OF MALLON J (Bail)

Introduction

[1]      On 28 August 2012 Ms Tamaka was sentenced to two months’ imprisonment on six charges of shoplifting, all of which occurred on 24 June 2012.  She appealed against that sentence.  An appeal was filed immediately.  Having lodged the appeal, counsel applied for bail pending the hearing of the appeal against sentence.   The District Court Judge declined that application.  She appeals against the decision to

decline her bail.

TAMAKA v NEW ZEALAND POLICE HC WN CRI 2012-485-81 [7 September 2012]

The District Court decision

[2]      The District Court Judge has a discretion whether to grant bail pending an appeal.   However bail pending appeal is unusual.   The Court must not grant bail, unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.  The factors relevant to the interests of justice are the apparent strength of the appeal, the length of the sentence that has been imposed, the likely length of time that will pass before the appeal is heard, the personal circumstances of the appellant and the appellant’s immediate family, and

any other consideration that the court considers relevant.[1]

[1] Bail Act 2000, s 14(3).

[3]      In declining bail, the District Court Judge stated:

Appeal lodged.   Application for bail s.14.   In my view the sentence was inevitable.    Particularly  given   her  attitude  to  the  offending  and   the appropriate sentence.  Notwithstanding length of sentence and duty of care to children and personal circumstances I do not consider it in the interests of justice that bail be granted. The effects of sentence are all natural consequences of her offending.  "New" information does not alter that.  If delay in the appeal is encountered the High Court could consider any further applications for bail.  Bail refused.  Not in interests of justice.  I see little strength in the appeal.

[4]      I am advised that the “new information” referred to by the Judge was two- fold.  First, that she could lose her Housing Corporation home if it was left vacant for 28 days (which was the effective length of her sentence).   Secondly, that Ms Tamaka had signed the consent for home detention.

The bail appeal grounds

[5]      The grounds of appeal against the decision declining bail are, in essence, that: (a)     Ms Tamaka has viable grounds of appeal;

(b)      There is extreme hardship to her and her young family;

(c)      By the time the substantive appeal against sentence is to be heard in the High Court, Ms Tamaka will have served almost all of her prison term; and

(d)Ms Tamaka had shown that she could comply with bail conditions because she had not further offended or breached any bail terms while awaiting sentencing.

[6]      As  to  the  first  of  these,  it  is  said  that  the  recommendation  in  the  pre- sentencing report was for community detention coupled with a community-based penalty, and that the Court understood that Ms Tamaka had declined to consent to home detention, when in fact she had signed all necessary consents for home detention.

[7]      Normally shoplifting would not result in imprisonment.  Therefore she may have an arguable case on appeal.   However her prospects on appeal could not be described as overwhelming.  Ms Tamaka had 29 previous convictions for shoplifting and  had  not  been  deterred  by  the  sentence  of  community  detention  she  had previously received.  She was viewed as demonstrating an attitude of entitlement and had described her offending as “pretty piddly”.  Even when the Judge was corrected about  Ms  Tamaka’s  consent  to  home  detention,  he  viewed  imprisonment  as inevitable.

[8]      The extreme hardship is said to arise because Ms Tamaka has the sole care of four children ranging in age from five years to 15 years.  However no evidence has been presented that they are receiving inadequate care or suffering hardship.  There is no evidence to distinguish Ms Tamaka’s personal circumstances or those of her family from the ordinary run of cases before the courts.  I am told by counsel that imprisonment came as a surprise to Ms Tamaka and therefore she had not made arrangements for her children. They are presently in the care of family members.

[9]      Time to hearing was the strongest factor pointing to a grant of bail.  However the Judge anticipated the potential for delay, and contemplated that the High Court could consider that if it occurred.  At the time of the District Court’s bail decision, it

seems that Ms Tamaka’s counsel was told that the appeal against sentence would not be heard by the High Court until 18 September 2012.   It is not clear if the Judge knew that.  I do not know why the 18 September date was conveyed when an earlier date could have been scheduled.  It seems perhaps that the urgency of the appeal may not have been conveyed by counsel or understood by the Registry.   Counsel have since been advised that the appeal is to be heard on 11 September 2012, by which time Ms Tamaka will have served two weeks’ imprisonment, leaving two weeks left to serve before she is released.

The application for bail pending the appeal against sentence

[10]     Counsel for Ms Tamaka must show that in exercising the discretion the Judge made an error of principle, failed to take into account all relevant matters, took into account irrelevant matters, or was plainly wrong.[2]   No such errors can be pointed to here.   The Judge took into account the strength of the appeal and her personal circumstances.   The Judge also took into account the potential for a delay in the hearing  of  the  appeal.    While  the  Judge  could  have  exercised  his  discretion differently in light of the time to appeal as compared with the length of her sentence, as  he  did  in  relation  to  Ms  Tamaka’s  co-offender  who  received  a  six  weeks’

imprisonment sentence, his approach was not in error and the decision was open to him.

[2] Dodd v R [2011] NZCA 490; Hereora v R [2011] NZCA 491; Wong v R [2009] NZSC 64.

[11]     If I were to grant bail to Ms Tamaka today, she would be released from prison over the weekend, but then (depending on the result of the appeal) she could be back in prison on Tuesday.  In these circumstances, and in the absence of any error in the Judge’s approach, the appeal against the refusal to grant bail is dismissed.

Mallon J

Solicitors:

Crown Solicitor’s Office, Wellington